United States v. Kemble

HASTIE, Circuit Judge.

This appeal presents important questions of the construction and application of the Act of July 3, 1946,¹ the so-called Hobbs Act, which makes it a crime against the United States to engage in acts of violence designed to obstruct commerce by extortion. An indictment under Section 5 ² of the statute charged Truck Drivers and Helpers Union, Local 676, and Aaron Kemble, one of its business agents, with acts of violence against one Elwood Leonard and property in his possession, pursuant to their “plan and purpose to obstruct, delay and affect commerce and the movement of certain articles and commodities in commerce by extortion”. The defendants were tried together and both were convicted. Kemble was sentenced to two years imprisonment and the union was placed on probation for three years. Both have appealed.

The evidence showed that Leonard, a truck driver employed by Doehler-Jarvis Corporation of Pottstown, Pennsylvania, transported a shipment of merchandise by motor truck from the Pottstown plant of 'his employer to Camden, New Jersey, where he attempted to make delivery of part of the merchandise at the RCA-Victor plant before proceeding elsewhere. Leonard had unloaded most of the RCA consignment when Kemble interposed. There is adequate proof that Kemble, after ascertaining that Leonard was not a member of or cleared by Kemble’s union, stopped Leonard from unloading the interstate shipment and employed actual and threatened violence against Leonard and the property in his possession.

The evidence of Kemble’s purpose was supplied by the truck driver Leonard himself and b}'’ Earle Lafferty who was receiving the shipment for the consignee as it was unloaded by Leonard. Lafferty testified as follows:

“ * * * he [Kemble] asked for a union card or book, and the man [Leonard] didn’t have any, and he said, You will have to have a helper from the local unload the truck, and there would be a day’s wages for a man which was $10.00.”

The driver, Leonard, testified to the same effect:

“He [Kemble] told me that I had to put a union man on the truck to unload. I said‘What for?’ He said‘Because the union rules it.’ I said ‘I don’t believe so. We are delivering our own stuff and the union rules say we can.’ He said ‘You will have to hire another man.’ I forget offhand what it was. It was in the neighborhood of $10. I said T am not authorized to pay him * * *

The defendants offered no proof or rebuttal whatever. Thus, on the issue of purpose it was reasonable for the jury to conclude that Kemble, understanding that Leonard did not want or need a helper and was not authorized to employ one, nevertheless forcibly insisted that Leonard pay $10, described as a day’s wages, for a supernumerary to do what Leonard himself was paid to do and was accomplishing when Kemble intervened.

Is violence with such design within the statutory meaning of extortion defined in the Hobbs Act as “the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force * * * ” ?³ More narrowly, is the payment which Kemble tried to compel such a levy of tribute as amounts to forceful “obtaining of property from another”? Or, does analysis of the attempted transaction as an exchange of wages for services, albeit a forced payment for and a forced acceptance of services, establish the absence of some essential of Hobbs Act extortion?

Certainly, as a matter of semantics, the quoted words of the statute, “obtaining of property from another”, are broad enough to cover Kemble’s objective. And an examination of the legislative history of the statute convinces us that Congress intended such comprehensive coverage.

Both the original “Anti-Racketeering Act” of 1934, 48 Stat. 979, and the amendatory reenactment of 1946, 60 Stat. 420, which controls the present indictments, are criminal sanctions directed against interference with interstate commerce by coercive conduct in the nature of extortion. Within this area the original Act proscribed, among other things, the use of threats or force to obtain, “the payment of money * * * not including, however, the payment of wages by a bona-fide employer to a bona-fide employee”. 48 Stat. 979, 980. The construction of this exception became a problem for the courts. In United States v. Local 807, 1942, 315 U.S. 521, 62 S.Ct. 642, 86 L.Ed. 1004, the Supreme Court analyzed this exception in considerable detail. One of its conclusions was that “ * * * an outsider who ‘attempts’ unsuccessfully by violent means to achieve the status of an employee and to secure wages for services falls within the exception. And where * * * the offense charged is conspiracy to violate the section, the defendants are entitled to immunity if their objective is to become bona fide employees and to obtain wages in that capacity, even though they may fail of their purpose”. 315 U.S. at page 531, 62 S.Ct. at page 646, 86 L.Ed. 1004.

In 1945, the House Committee on the Judiciary reported the bill which became the 1.946 revision of the statute. Beyond formal reorganization and improvements in language the principal change accomplished by the new bill was the elimination of the exception the effect of which had been stated in the Local 807 case. More particularly, the 1946 reenactment covered interference with interstate commerce by actual or attempted “extortion” and defined “extortion” as “the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force * * But, different from the original statute no exception was made for cases where the property involved should be money demanded to be paid in the form of wages. This change was deliberate. The committee report shows that Congress had the original exception and its effect foremost in mind, for that report sets forth in full text the Supreme Court opinion in United States v. Local 807 construing the controversial exception, and little else. And throughout the ensuing debate on the House floor, proponents of the bill talked principally about the undesirable narrowing of the original statute which had resulted from judicial construction of the exception. 91 Cong.Rec. 11899-11922 (1945). The debate was opened for the proponents of the bill with an explanatory statement by Congressman Hancock that “This bill is designed simply to prevent both union members and nonunion people from making use of robbery and extortion under the guise of obtaining wages in the obstruction of interstate commerce.” 91 Cong.Rec. 11900. Speaker after speaker expressed essentially the same view of the purpose and effect of the bill. Equally instructive was the effort of Congressman Celler to amend the bill from the floor by inserting a stipulation that extorted property should not include “wages paid by a bona-fide employer to a bona-fide employee”. 91 Cong. Rec. 11913-11917. Not only was this amendment defeated but the debate on it made clear the prevailing view that such solicitude toward the forced payment of wages would destroy the principal intended effect of the bill and preserve the strictures of the Local 807 case.

In these circumstances, the conclusion seems inescapable that Congress intended that the language used in the 1946 statute be broad enough to include, in proper cases, the forced payment of wages. We say “in proper cases” advisedly. For it is not necessary that we here consider the great variety of circumstances in which coercion may be involved in the payment of wages. We need not consider the normal demand for wages as compensation for services desired by or valuable to the employer. It is enough for this case, and all we decide, that payment of money for imposed, unwanted and superfluous services such as the evidence shows Kemble attempted to enforce here by violent obstruction of commerce is within the language and intendment of the statute.

A final observation on this phase of the case. We have considered that the original “Anti-Racketeering” Act expressly preserves “the rights of bona-fide labor organizations lawfully carrying out the legitimate objects thereof * * * ”, and that by fair inference the Hobbs Act does the same thing. But the word “lawfully” is an important limitation. It is all important here since no federal or state sanction makes Kemble’s violent conduct lawful.

This disposes of the principal contention of Kemble. He has advanced others concerning the admission of evidence and the content of the prosecutor’s summation. We are not persuaded that any of these contentions is well founded. We find no error in the conviction of Kemble.

The case against the union involves the additional question whether the organization was criminally responsible for Kem-ble’s acts. Proof of responsibility had to meet a statutory standard imposed by Section 6 of the Norris-LaGuardia Act, 29 U.S.C.A. § 106, as recently construed by the Supreme Court in United Brotherhood of Carpenters and Joiners of America v. United States, 1947, 330 U.S. 395, 67 S.Ct. 775, 91 L.Ed. 973.

It is not disputed that Section 6 of the Norris-LaGuardia Act applies to proceedings under the Hobbs Act.⁴ And Section 6 provides that neither an individual nor a labor organization can “be held responsible or liable in any court of the United States for the unlawful acts of individual officers, members, or agents, except upon clear proof of actual participation in, or actual authorization of, such acts, or of ratification of such acts after actual knowledge thereof”. In the Carpenters case, the Supreme Court reasoned that under the quoted language liability may not be predicated on a showing which would satisfy merely the requirements of the tort doctrine of respondeat superior or even the stricter normal criminal law doctrine which defines the area of “corporate criminal responsibility for the acts of officers and agents in the course or scope of employment”. Beyond both of these there must be “clear proof that the particular act charged, or act generally of that type and quality, had been expressly authorized, or necessarily followed from a granted authority * * * or was subsequently ratified by [the] association * * * after actual knowledge of its occurrence.” 330 U.S. at 406-407, 67 S.Ct. 781, 91 L.Ed. 973.

It 'is noteworthy that the Court did not deal with “participation” by the labor organization as a category distinct from “authorization” or “ratification”. The reason seems clear. In the Carpenters case, as in this case, an organization was indicted solely on the basis of acts of its agents. No effort was made to show any “participation” of the organization except insofar as acts of agents may have been authorized. Thus, demonstration that there was no sufficient proof of union “authorization” by the same token negatived union “participation”. Any different result would have required the invocation of fiction which has no proper place in the imposition of punishment.

There was a dissent in the Carpenters case. The dissenting Justices pointed out that, under the Court’s construction of Section 6, responsibility of a union for acts of its officers or members would be limited for all practical purposes to cases where the wrongdoing in question or similar wrongdoing had been authorized or approved by vote at a union meeting or some equally clear manifestation of group will. The dissenting Justices seem to have believed that such doctrine as normally limits ■ criminal responsibility for acts of agents, applied in conjunction with the normal requirement of proof of each essential element of a crime beyond reasonable doubt, would satisfy the provisions of the Norris-LaGuardia Act.

But we must take the law as the Supreme Court finds it. For our purposes the dissent in the Carpenters case but emphasizes the stringency of the rule we are required to follow. This strict rule precludes a conviction here.

In the view most favorable to the prosecution, the evidence in this case showed merely that the wrongdoer was a business agent of the union; that he was charged by the union with responsibility for checking upon and making appropriate representations about the union status of persons unloading trucks; that four other unidentified persons participated with him in the wrongdoing in question; and that at the scene of the wrongdoing, a few minutes after its occurrence, the secretary-treasurer of the union threatened similar “trouble” for another employer if it should “not live up to the union contract”. There was no other evidence tending in any way to show relationship between the union and the violence of its business agent.

As concerns ratification, it does not even appear how, when or whether the union was informed of its agent’s misconduct. It is obvious that the threat by the secretary-treasurer a few minutes after the wrongful act was no clear proof, if proof at all, of approval of wrongdoing by the organization.

The case for prior authorization is no better. Only by invoking the tort conception of respondeat superior can the proof of the business agent’s office and duties have been made a basis of union responsibility. At most it can be said that in an effort to accomplish a lawful mission assigned by the union the business agent acted in an unlawful way not required by his mission and not shown to have been authorized by his principal. The case is essentially like that where an employee, instructed merely to collect a bill, assaults a non-paying debtor. Principles of civil liability may permit the imposition of responsibility on the employer who has in no way assented to the wrong. Son v. Hartford Ice Cream Co., 1925, 102 Conn. 696, 129 A. 778. But cf., Martin v. Curran, 1951, 303 N.Y. 276, 101 N.E.2d 683. However, even normal criminal responsibility does not extend that far. In this regard, the criminal law doctrine is so well settled that its exposition in contemporary judicial opinions is rare. However, some years ago in Nobile v. United States, 3 Cir., 1922, 284 F. 253, 255, this court did have occasion to point out that “Criminal liability of a principal or master for the act of his agent or servant does not extend so far as his civil liability. He cannot be held criminally for the acts of his agent, contrary to his orders, and without authority, express or implied, merely because it is in the course of his business and within the scope of the agent’s employment, though he might be liable civilly.” See also United States v. Food and Grocery Bureau, D.C., S.D.Cal., 1942, 43 F.Supp. 966, 971.

It follows that the evidence here does not meet even the standard which the Justices dissenting in the Carpenters case would have imposed. The added stricture of the prevailing construction .of the Norris-LaGuardia Act is not needed to establish the failure of proof in this case. But it does serve to make that failure clear beyond doubt. Moreover, this special requirement of “clear proof of * * * actual authorization” makes it noteworthy that the district judge in sentencing the union remarked that the question “Whether or not the union ratified or directed this act on the part of Kemble and O’Neall was from the factual standpoint a close one.” And the United States Attorney who argued this appeal conceded with commendable candor and obj ectivity that the evidence against the union was not particularly strong. Of course, we are not bound by these impressions of others. But they confirm our conviction that the case against the union contained no “clear proof of * * * actual authorization”.

In appeal No. 10,422 the judgment and sentence will be affirmed. In appeal No. 10,423, the judgment will be reversed and the cause remanded to the district court with direction to enter a judgment of acquittal.

1 . 60 Stat. 420,18 U.S.C. § 420d (1946 ed.).

In 1948, between the occurrence of the offence here charged and the indictment, this statute was superseded and its substance reenacted! without consequential change as Section 1951 of the new Title 18 of the United States Code. However, such a prosecution as this. Act of June a saving clause in the repealer permitted 25, 1948, c. 645, Sec. 21, 62 Stat. 862, 18 U.S.C.A. note preceding section 1.

2 . “Sec. 5. Whoever commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of section 2 shall he guilty of a felony.”

Section 2 provides:

“Whoever in any way or degree obstructs, delays, or affects commerce, or the movement of any article or commodity in commerce, by robbery or extortion, shall be guilty of a felony.”

3 . “Sec. 1. As used in this title—

* * * *

“(c) The term ‘extortion’ means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.”

4 . The Hobbs Act itself reaffirms Section 6 of the Norris-LaGuardia Act and declares that it is in no way modified. 60 Stat. 420, 421.